The Faded 1987 Power of Attorney
On 12 March a client, Sr. Manuel Kiala, presents a yellowed power of attorney dated 1987, granted by his late father to an uncle, authorising the uncle to sell a parcel in Benguela. The document bears a notarial stamp from a notary office that closed in 1994, and the signature page is partly illegible due to water damage. Manuel wants you to certify a copy and use it as the basis for a new deed of sale, arguing that 'the power never expired'. The uncle is now deceased. The property is still registered in the father's name. Manuel has no will and no succession certificate. A buyer is pressing for signature today.
1. Can the 1987 power of attorney be used today as the basis for a sale by the uncle's heirs or by Manuel?
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No. Three independent defects defeat it:
- Mandate terminates on death. A power of attorney is a personal mandate; it lapses with the death of either principal or agent (Civil Code rules on mandate). The father and the uncle are both dead, so the power is extinguished regardless of any stated term.
- Powers are not heritable. The uncle's heirs cannot exercise a mandate granted intuitu personae; Manuel cannot act 'under' it either, since he is not the attorney.
- Defective instrument. A water-damaged signature page and a stamp from a closed office make authentication unreliable. A notary may not certify a copy of a document whose integrity is doubtful, and cannot use a doubtful instrument as the foundation of a solemn deed.
The correct route is succession: open the father's estate, obtain the habilitação de herdeiros / succession certificate, register the heirs, and only then sell - with the heirs as sellers, not as attorneys.
2. What should the notary do procedurally when Manuel insists on signing today?
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Refuse to draw the deed and document the refusal.
- Duty of legality and prudence: the notary must verify title, capacity and the validity of the instrument. Here title is still in the deceased father's name; the seller has no registered standing.
- No certification of the damaged copy: decline the copy certification, stating the reason (illegibility/integrity).
- Written note in the file: record the documents presented, the reason for refusal, and the advice given (succession first).
- Referral: direct the client to the conservatória / registry for the habilitação de herdeiros and to a lawyer for the estate.
- No 'provisional' deed: do not sign a deed 'subject to later regularisation' - solemn form does not tolerate conditional title.
This protects the notary from disciplinary and civil liability and protects the buyer from a void title.